Here’s What the Legal Aid Community Thinks of de Blasio’s Bail Reform Plan

July 13, 2015

A bail reform plan from the de Blasio administration has advocates hopeful but watching closely. The reforms were spurred in part by the story of Kalief Browder, seen above, who languished on Rikers Island for three years without charges.Screenshot, The View

Criminal justice reform advocates reacted with guarded optimism to Mayor Bill de Blasio’s proposed bail reform package, designed to keep more low-level, nonviolent offenders out of the troubled Rikers Island jail facility. From police reform activists to the public defender community, those who work with some of the most vulnerable defendants say the program — which calls for steering more defendants into community supervision programs, rather than cash bail arrangements — offers possibilities but also some risk.

De Blasio developed the $17.8 million program with several of the city’s district attorneys, acknowledging the persistent problems with cash bail, which even when relatively small can ensure that low-income defendants remain behind bars while awaiting trial. The plan expands pilot programs already under way in Queens and Manhattan to the other three boroughs, bringing the total from 1,100 to 3,400 available slots. The city is paying $4 million to fund the program, with the remainder coming from asset forfeiture funds provided by the office of Manhattan District Attorney Cyrus Vance.

More than 45,000 people in New York City are detained on bail each year — about 14 percent of all defendants. That’s a number that has received considerable attention in recent months as the city’s troubled jail at Rikers Island has been under increased scrutiny. The new initiative was prompted in part by the story of Kalief Browder, a young man who spent three years on Rikers Island yet was never convicted of a crime. Unable to afford bail but maintaining his innocence, Browder had his trial repeatedly delayed, spending much of his time behind bars in solitary confinement.

Browder, who was the subject of a damning New Yorker story last year, was finally released in 2013, and all charges against him were dropped. But Browder committed suicide earlier this summer, an incident his family attributes to the mental trauma he sustained at Rikers.

“The headlines this week have been ‘cash bail eliminated,’ and ‘no more cash bail,’ but that’s not really what’s happening.”

The pilot programs have been in operation for several years already. One of them, run by the nonprofit New York Criminal Justice Agency, operates out of Queens and supervises hundreds of clients as they await trial, offering a good model for what might be coming under the mayor’s plan.

Mari Curbello, who oversees the initiative as CJA’s associate director for court programs, says the idea behind the program is simple: provide support and resources to help people make it to their court dates on time.

“Our clients are not at the lowest risk of failing to appear,” Curbello says, “but they’re also not at the highest. We’re trying to find that middle ground.”

Some defendants are too likely to be flight risks to be granted bail at all, and the vast majority can safely be released with no bail posted. But for those defendants who may pose moderate risk — and might otherwise be forced to post a cash bond in order to be released — CJA takes on a supervisory role, providing support that hopefully helps clients get to their court dates in good standing, and doesn’t let them languish in jail.

Curbello says that under New York State law, the risk of flight is the only factor judges are allowed to consider when determining bail requirements. In other states, judges can also consider the seriousness of the crime, the defendant’s criminal history, and other factors.

That narrow range of considerations, Curbello says, leads to sometimes high bail requirements for defendants who face minor charges and are statistically very unlikely to run from the courts. In reality, Curbello says, few defendants are tempted to go on the lam. Rather, the reasons for missing a court appearance are typically much more prosaic.

“Usually somebody has gotten confused about the court date. Maybe they get a piece of paper from the court officers, and the 9 looks like a 7,” Curbello says. “It may be that someone couldn’t figure out a way of getting out of work, or childcare, somebody may be sick or may be hospitalized…the number of people who really thumb their noses at the court is very small.”

Those defendants aren’t looking for a cash incentive to return to court, Curbello says, but just need a few reminders and some coaching. And that’s where groups like CJA, which has been working under Manhattan’s pilot program, come in.

At CJA, defendents have an initial evaluation to determine their needs; some might be offered voluntary drug counseling, others access to mental health services. The first week, they are required to meet twice in person with CJA staff and check in once by phone. The next week, if all goes well, they’ll be down to just one face-to-face meeting and a phone call. After that, only phone check-ins are required.

The idea is to keep people connected to the process, and offer support if they want it. But Curbello is quick to note that mental health and substance abuse treatment is purely optional. They are cognizant that those enrolled in their programs are “accused, not convicted. They have a right to be presumed innocent,” she says, and CJA is not running a punitive program.

The need to make sure that community supervision programs don’t just become one more facet of the correctional system is something public defender groups express to the Voice. All had positive things to say about the current pilot programs, but going forward, they say it’s important to make sure that the expanded programs aren’t overly invasive.

Reminders are a great thing, explains Corey Stoughton, senior staff attorney with the New York Civil Liberties Union. But punitive measures are not.

“As advocates, we need to make sure that only the supervision that’s necessary to secure the defendant’s appearance in court is implemented,” Stoughton says. Community supervision programs all have certain conditions that defendants have to meet. “We’ll need to know what those conditions will be and the consequences of not meeting them.”

The level of supervision is a concern, but Tina Luongo, attorney-in-charge of the criminal practice at the Legal Aid Society, says community supervision programs can pose another risk in the long term; they might end up ensnaring too many people, including people who should be released outright.

“It’s a good tool in a toolbox,” she says of community supervision programs, “but only if we’re not sweeping up people that shouldn’t have bail imposed on them in the first place.” Having such programs in place, Luongo says, may tempt some judges to send defendants to what amounts to an intermediate level of surveillance, when they might otherwise be freed.

Robyn Mar, an attorney with the Bronx Defenders, another public defender organization, is worried that programs like this might give the false impression that the bail system in New York City has been fundamentally transformed.

“The headlines this week have been ‘cash bail eliminated,’ and ‘no more cash bail,’ but that’s not really what’s happening,” Mar says. “But I am encouraged by the attention to the issue. I’m glad that people are talking about the problems of overpopulation and violence at Rikers Island and that the city has recognized the need for reform.”

Both Luongo and Mar say the real problem is the cash bail system itself. Community supervision is a good step, they say. But ultimately, it’s a stopgap in a system that penalizes the poor and costs taxpayers huge sums of money incarcerating low-level defendants who pose no real risk to the community.

“Any monetary bail sets up a ‘tale of two cities,’ ” Luongo says. “And there are many, many quality-of-life crimes that shouldn’t result in cash bail, period. Or even a community supervision program, frankly.”

The programs are all limited to nonviolent, low-level felony offenders. And in Curbello’s view, there are some candidates who may be charged with more serious felonies who would be excellent candidates for the program. They’d like to be able to take people into the program based on their specific circumstances, not just the charges against them. But she’s also wary about drawing people into the program unnecessarily, and says her staff often push back on judges who seem to want to use CJA as a valve for people who really should be released.

“We are certainly very concerned about the floor,” Curbello says, meaning the threshold for release. “We don’t want to affect people that would otherwise be released on recognizance,” she says, and it’s something they monitor closely.

Bob Gangi, director of the Police Reform Organizing Project, expressed some of the same concerns the other groups did, but was far more skeptical of the idea.

“If they want to get at the heart of this problem,” Gangi says, “they should direct the police department to abandon broken-windows policing. It is the single most significant factor in causing the unnecessary incarceration of people who are not dangerous or predatory.”

The details of the mayor’s plans have not been released; so far the city has only posted a request for proposals, seeking a nonprofit contractor to run the program. Depending on who wins the contract, future programs may look different from the programs that exist today. (De Blasio’s office did not return a request for clarification on specifics by press time.) But those specifics will matter, advocates say.

“The devil will be in the details,” says Luongo, “and we certainly hope that the city will continue to work with us, and the other defender organizations, to make sure the program is the right fit for the right people.”